Friday, May 29, 2009

Blawg Post: Sotomayor Is A . . . Wait For It . . . WOMAN. Deal.

So here's what she actually said:
"I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life." The remark was in the context her saying that "our gender and national origins may and will make a difference in our judging."
But here is how it's being summarized:
Latinas make better decisions than white dudes.
Here's the problem - the paraphrase is such a globalized version of her actual statement it no longer contains any of the original meaning or nuance. And yeah, there's nuance.

By the way, maybe it's my age, or my marital status, or the "you're SO having kids soon!" statements from people who have no business commenting on my reproductive choices but I'm having a bit of a feminist thing right now. Thank God.

Part of the fun of the paraphrased "girls jurisprudential rule, boys drool" statement is that white dudes have no end of fun in saying "well if we changed that how fast would WE be called out for it! UNFAIR!"

This is the same crap that leads to magazine covers sobbing over what is happening to our little boys because girls are making strides in education. Oh dear! Centuries of dominance slips by a centimeter and HOLY SHIT, START THE RESEARCH, HOW DO WE SAVE OUR FRAGILE MEN.

Clearly, the first step to saving them is to make sure we emphasize language that normalizes the male (and in this country, WASP male) experience and solidifies others as, well, other. Lady lawyer! Lady doctor! Woman judges! Regular judges, of course, are dudes. And they all think alike.

Someone commented to me recently that eventually I'd need to choose if I'm going to be a woman lawyer or a lawyer.

You see the problem here, right?

As I am very attached to my lady business, I have a feeling I'll always be both. And being a woman - biologically and sociologically and culturally - is going to affect the way I ... live, think, etc. Seriously, does this need to be explained? I don't have to decide shit. I'm a woman. I'm a lawyer. And no, the two cannot be split.

They're judges. Judges judge. And we're common law, not civil law, so some stuff is gonna be squishy, kids. She's damn right to hope that women or particular kinds of women are going to look at things differently - and probably better - than men.

Everyone forgetting the MPC rape laws they studied in school. Had to present evidence that you fought back? Couldn't be raped by your husband? Those chestnuts from legislative history have slipped your mind?

I'm surprised they aren't just raising the "she'll have to ask the Pope about stuff" argument since we're going all retro.

Such bullshit. All of it.

18 million cracks but it ain't broken yet.

And another thing:

So this should frost them even more:
She also said, for example: "Personal experiences affect the facts that judges choose to see."

"My hope is that I will take the good from my experiences and extrapolate them further into areas in which I am unfamiliar," she said. "I simply do not know exactly what that difference will be in my judging. But I accept there will be some based on my gender and my Latina heritage."

At the time Sotomayor gave the speech, she was in the same job she is now, a federal appeals court judge. She said then she was reminded daily that her decisions affect people and that she owes them "complete vigilance in checking my assumptions, presumptions and perspectives."

"I willingly accept that we who judge must not deny the differences resulting from experience and heritage," she added, "but attempt, as the Supreme Court suggests, continuously to judge when those opinions, sympathies and prejudices are appropriate."
To which I say: DUH! Of course. Obviously. Yes. And, great!

I can't help recalling my last tour of jury duty. Throughout voir dire these people would swear they could leave it at the door, but, no, it was pretty clear they couldn't, so they got bounced. So why not be honest about it all. Know that we are informed by the totality of our lives and that's precisely WHY we need different people to come together to sit on the highest bench around.

Ugh. I hate all of this so very, very much.


Anonymous said...

For context, the comment about making a decision whether to be a woman lawyer or a lawyer was in response to the statement that, as a woman, you could not put on certain evidence in a case. The implication of that statement is that it would be okay for a male attorney to put on such evidence. Zealous advocacy mandates representation be ethically aggressive, regardless of the gender of the client's attorney.

cd said...

If I implied that it would be okay for a male attorney to put on such evidence, that was a mistake.

There are some arguments that shouldn't be made. And some that, while no one should make them sound ESPECIALLY vile coming from a particular person. I agree, however, with your assertion that ethical aggression is required for zealous advocacy.

And maybe this is where Sotomayor's comment comes into its own:

As the pool from which judges (and lawyers) come deepens and widens, so too will the commonly held beliefs regarding what is ethical. Ethics aren't static. Mores may be (per a particular culture) but what constitutes ethical behavior is necessarily going to shift over time along with changes in culture, technology, etc. . . . .

Sometimes it takes someone with a particular frame of references (which can come from gender, among other things like geography, demography, economic status, upbringing, etc) to say - no, that's not a good idea, the implications of that argument are x, y, and z, not just the a, b, and c you thought they were.

And I don't think we really get the full context from either your comment or my comment. And we're not going to present the full context on my blog, right? I'm going to go with "no" on that.